Monthly Archives: August 2010

First, Urban Redevelopment Policy, Judicial Deference to Unaccountable Agencies, and Reality in Brooklyn’s Atlantic Yards Project, 42 Urb. L. 287 (Spring 2010), by Amy Lavine (of whom more presently) and Norman Oder. Mr. Oder is a journalist and the author of the comprehensive blog http://AtlanticYardsReport.com which he has run since 2006, and which is probably the most accessible source of detailed information about the Atlantic Yards project and the associated litigation. A good read, that.

Second, the prolific Amy Lavine is at it again in Urban Renewal and the Story of Berman v. Parker, 42 Urb. L. 423 (Spring 2010). Ms. Lavine is a staff attorney at the Government Law Center at Albany Law School. This article presents the reader with a detailed history of another notorious redevelopment project — the Southwest Washington, D.C., redevelopment that gave rise to the wretched Berman v. Parker case in which “Wild Bill” Douglas drove a truck through what was then left of the Public Use Clause of the Fifth Amendment. This article provided us with a touch of nostalgia because in the early 1960s, your faithful servant lived in one of those modernistic townhouses built as part of that project, that are depicted on p. 463.

We found of special interest the factual tidbit that though the Southwest redevelopment project was sold to the Supreme Court as an effort to uplift the poor slum dwellers who — so went the plan — would be provided with low-cost housing renting at $17 per month per room, in fact, after the court approved the plan and allowed the eminent domain takings to proceed, that provision of the plan was dropped. Ten years later, the Wall Street Journal reported that rents in the new, redeveloped Southwest were so high that they inspired a rent strike by affluent tenants.

The North West Herald (McHenry County, Illinois) reports that the village of Lake in the Hills has settled its eminent domain action against a local owner, to acquire about three-quarters of an acre of land for for the local airport.

The village’s offer was $430,000. The settlement (which includes the value of the taken land, plus severance damages, plus relocation expenses, plus an avigation easement limiting construction on the remainder property) is $780,000.

We quote without comment from a Los Angeles Daily News front page story:

“After spending more than $154 million for a system of locking turnstiles and electronic payment cards for the county transit system, officials are discovering that at least a third of the money may have been wasted because they can’t use the new devices as planned.” Troy Anderson, Daily News, Aug. 22, 2010, at p. A1.

And why would they install locking electronic turnstiles now, when the subway has been in operation for years? Answer: because the numbskulls who designed that system made it an “honor system” — passegers were on their honor to buy tickets, but if they didn’t no one would stop them from becoming literal free riders by just walking in, sittting down, and going to their destination, with an estimated annual loss to MTA of $13 million. So the MTA folks had to institute roving patrols to check passengers’ tickets on moving subway trains. But that cost money too, so they decided to put in those electronic turnstiles that don’t work and can’t be used.

Welcome to California where the supreme court says that in eminent domain cases we can’t pay just compensation to condemnees for all their economic losses because if we do an “embargo” on public projects will have to be declared. That would mean that the MTA wouldn’t be able to waste gazillions of the taxpayers’ dollars on turnstiles that don’t work.

And did we mention the recent news that the Los Angeles school district is completing a new Taj Mahal of a high school for over a half-billion dollars? That’s for one high school. Not bad for a school system that fails to graduate half its students.

Here is the latest on developments in the plans for construction of a high-speedd rail network. From today’s Wall Street Journal, Josh Mitchell, High-Speed-Rail Costs Irk States, Aug. 21-22, 2010, at p. A3. We quote:

“Some states that participated in the Obama adminstration’s plans for building high-speed-rail networks are now balking at those projects, halting or scaling back developments because the federal government won’t foot the bill.”

The problem is that after the initial federal allocation of $8 billion, states submitted applications for funds totalling $102 billion. So what else is new? But before providing more money the feds want the recipient states to pay for 20% of the cost. So guess what? Once the realization that the high-speed raill “free lunch” wasn’t all free sunk in, state applications dropped abruptly from $102 billion to $8.5 billion. And so it goes.

From today’s column by Jonah Goldberg, Making a Mess of a Mosque, Los Angeles Times, August 17, 2010, at p. A13:

“[T]he Big Apple is a Hieronymus Bosch hellscape for landlords and developers. Rent control, historic preservation, zoning, environmental impact, community protests, union delays — not to mention plain old red tape and corruption — often enough tools to stop any project before it starts (ground zero is still a gaping hole and everyone wanted that land to be developed fast.)”

No comment appears necessary, except to note that Mr. Goldberg evidently forgot eminent domain abuses that in New York have been elevated to the level of an art form.

A while back we noted the big-time announcement in Florida. It began with President Clinton announcing an $8 billion plan in 2000 to restore the Everglades. The state of Florida announced in 2008 that it was going to do its share by acquiring 187,000 acres of land for a cool $1.75 billion (that’s “billion” – with a “b”), eliminating the sugar plantations in that area, so that the surface water could flow naturally toward the sea. This, went the prognostication, would restore the “river of grass,” as the Everglades is sometimes called by nature lovers, to its natural condition. It was to be, in Florida Governor Charlie Crist’s words, the new “holy grail.”

But it didn’t work out that way.In a familiar reenactment of a Kabuki-like process that is all too familiar to those of us acquainted with government land acquisition practices, it turned out that – in the words of the New York Times – “the governor and the [South Florida Water Management D]istrict repeatedly underestimated the purchase’s financial and environmental complications, leading to costly suspension of projects with more immediate benefits, and to the alienation of potential partners.”. . . “[L]ittle thought seemed to have been given to affordability. . .” Damien Cave, For the Everglades, a Dream Loses Much of Its Grandeur, N.Y. Times, August 13, 2010, at p. A15.

Surprise, surprise!

So the grandiose project started shrinking. First change came in the form of plan to reduce the scope of the acquisition to only 180,000 acres at a cost of $1.34 billion. That didn’t work out either, for local political reasons, says the Times.

So in 2009, facing “dwindling tax revenues” a third deal was announced: an acquisition of only 72,800 acres at a cost of $536 million.Whether this shrunken deal will work out is still uncertain; it has its critics too.

So what’s the moral of it all? For one thing, here is a reaffirmation of the eternal verity that there ain’t no such thing as a free lunch. As Justice Oliver Wendell Holmes put it eighty years ago in Pennsylvania Coal Company v. Mahon, the public, the same as private individuals, is entitled only to what it pays for. Second, if there is one thing you can bet the farm on, it is that when the government announces the projected cost of a project, particularly one involving land acquisition, the actual price tag will turn out to be much higher. Back in the 1950s, a California Highway Commissioner wrote an article in which he revealed that actual land acquisition costs ran consistently some 30% higher than the highway planners’ projected figures. Evidently, that much hasn’t changed.

The Orange County Register reports that the city of Laguna Woods took by eminent domain the privately-owned building which it has been leasing as the City Hall. The city offered $3.65 million, but after trial the jury returned a verdict of $6.43 million. Claire Webb, Laguna Woods Must Pay $6.4 Million to Take City Hall, Aug. 11, 2010.

Albert Einstein once defined insanity as doing the same thing over and over again but expecting a different result each time. Case in point: Wayne State University professor John Mogk has written an op-ed in the Detroit Free Press (Detroit Still Needs Eminent Domain, Freep.com, August 5, 2010) proposing the antic notion that what Detroit needs is widespread use of eminent domain to acquire all that vacant land sitting there, land that has been abandoned en masse by its erstwhile population that sensibly moved elsewhere, and then assemble it into large manufacturing plant sites.

Never mind that recent history of Detroit is a history of doing just that, only to fail dismally. Never mind also, that this proposal passes in silence over the likely cost of such a caper. Who is going to pay for it? Detroit is broke and has had to shut down schools and parks lately.

Just to remind you, it was Detroit that in the 1980s used (or more accurately abused) the power of eminent domain in the notorious Poletown case. There, it blew $200,000,000 to condemn 400 acres of urban land in order to turn it over to General Motors for a new Cadillac plant. This caper displaced 1200 households, 100 businesses, 16 churches, and a major hospital. GM got the site for $6,500,000. What a deal! It also got a 50% tax abatement that enabled it to save $5.4million annually over a period of 12 years. And yet, Professor Mogk calls that urban and civic disaster an “industrial jewel.”So did it at least work? Don’t be silly. The projected 6000 jobs never materialized, and most of the time GM did not even manage to employ half that number at the Poletown plant. And as we need not remind you, in the long run GM went bankrupt.

And of course, what’s good for General Motors is good for Chrysler which got a similar deal from the city in the Vavro case. And you know how much good that did. Chrysler too went bankrupt, and is having problems even now, so that its continued viability is something less than a sure bet.

What Detroit did accomplish with its use of eminent domain was to give rise to decisional law taking it to task for abusing its powers, and deliberately creating blight so it would have an excuse to condemn the subject land for a pittance. See Foster v. City of Detroit, 254 F.Supp. 655, affirmed, 405 F.2d 128 (1968), and In re Urban Renewal, Elmwood Park, 136 N.W.2d 896 (1965).

But it appears that in spite of these urban calamities, the lesson has not been learned, even though Detroit’s decades-long use of eminent domain to redevelop itself has produced an urban disaster of unprecedented proportions – those folks out there are now seriously discussing the plowing under of what’s left of much of the city and devoting the vacant land to truck farming. No, we are not making this up. See Susan Saulny, Razing the City to Save the City, N.Y. Times, June 21, 2010, at p. A16.

To appreciate the devastation that the city’s past policies (including its frequent use of eminent domain for redevelopment) have brought upon Detroit, see the October 5, 2009, cover story in TIME magazine (Daniel Okrent, Notown, at p. 26. And don’t miss the pictures of the post-apocalyptic cityscape of what is left of today’s Detroit. See http://www.time.com/time/photogallery/0,29307,1864272_1810098,00.html

They say that a picture is worth a thousand words, so do take a look at those pictures and see for yourself. Is that where you would want to move yourself or your business?

Follow up. We just came across another article by Catherine J. LaCroix, Urban Agriculture and Other Green Uses: Remaking the Shrinking City, 42 Urban Lawyer 225 (Spring 2010). It promotes the idea of converting “shrinking cities” into agriculturally productive areas. Does that mean that Professor LaCroix will engage in an intellectual duel with Professor Mogk over which use should be chosen? We can’t wait.

New York is all atwitter again over the use of eminent domain, complete with a front-page article in the New York Times (Debate Heating Up on Plans For Mosque Near Ground Zero, July 31, 2010). A Muslim group wants to put up a large mosque overlooking the site of the 9/11 atrocity, and many people in and out of New York perceive that as a triumphalist Muslim effort to taunt the victims of the attack on the Twin Towers. So they, including the Republican New York gubernatorial candidate, demand that the government take the site of the proposed mosque by eminent domain for a memorial to the 9/11 victims.

But the Muslims argue that this would violate their freedom of religion. Whatever the politics of it all, they face an uphill fight on the law. Tempting though it may be at times, you don’t get to examine the subjective motivation of legislators because, as the court put it in King City v. Commercial Bank of Central California, 131 Cal.App.4th 913, 943 (2005), judicial examinations of undisclosed mental processes of legislators would grossly overstep the constitutional bounds of the judiciary.

What that means is that you don’t get to argue in court over the subjective motivation of decisions to take private property for public use. If the stated use is public, you are confined to examining whether the condemnor is guilty of “gross abuse of discretion” or bribery in determining public necessity for the taking. And even that limited extent of judicial review has been available only since 1976 when the Legislature adopted the current Eminent Domain Law.

The Illinois Supreme Court put it concisely: “[I]n a condemnation action the purpose for which the power of eminent domain is exercised may be questioned, but ‘the motives that may have actuated those in authority are not subject to judicial investigation.’” Ligare v. City of Chicago, 174 N.E.2d 934.

How bad can it get? Pretty bad. The best known and probably the worst case of this genre was Rosenthal & Rosenthal v. N.Y. State Urban Development Corp., 605 F.Supp. 612 (1985), aff’d. 771 F.2d 44 (2d Cir. 1985). There, the property owners charged that the boundaries of the Times Square redevelopment project had been corruptly drawn, to benefit the Mayor’s allies at the expense of the plaintiffs whose unblighted land would be taken and transferred to the aforementioned friends for their financial gain. But that did not bother the court in the least.

As the District Judge explained, even if the city officials’ motivation was illegal, as far as the U.S. Constitution was concerned, their illicit motives did not change the “public use” character of the taking. Redevelopment, said the court, is a “public use,” and what motivates the takers in pursuing it, does not implicate federal constitutional concerns. The U.S. Court of Appeals affirmed, without mentioning any of the unpalatable factual allegations in its opinion.

Another infamous case of this type was the Deerfield Park controversy in Illinois where the court was unperturbed by the charge that the taking of the subject property for a park, was actually intended to frustrate the construction of a racially integrated housing project. Their Lordships agreed with the District in a perfunctory opinion holding that if the District said that it needed parks, that was that. Deerfield Park District v. Progress Dev. Corp., 186 N.E.2d 360 (Ill.App. 1962).

California law is no better. In Capron v. State, 247 Cal.App.2d 212 (1966) the state successfully argued that a condemnor’s resort to intrinsic fraud in taking property – taking it for ostensibly one purpose, while intending to devote it to another – does not invalidate the taking. Indeed, until 1976, when the legislature enacted the current Eminent Domain Law, it was a black-letter California rule (laid down in People v. Chevalier, 52 Cal.2d 299 (1959)), that a condemnation resolution finding necessity for a taking is not justiciable at all, not even where it is procured by fraud, bad faith or abuse of discretion.

All of which is largely academic because it has always been California law that where a condemning agency takes or purchases private property for an ostensibly public use, but instead – surprise, surprise! — devotes it to another use, no use, or even sells it to a private party at a profit, that does not give the property’s former owners any right to relief. See Beistline v. San Diego, 256 F.2d 421 (9th Cir. 1958).

The best known local case of that type was the condemnation of Chavez Ravine for public housing. But as you no doubt know, no public housing was built there, and the land was later conveyed to the Brooklyn Dodgers to induce them to move to Los Angeles. See Arechiga v. Housing Authority, 183 Cal.App.2d 835 (1960). For a collection and discussion of other such cases, see Gideon Kanner, We Don’t Have to Follow Any Stinkin’ Planning – Sorry About that, Justice Stevens, 39 Urban Lawyer 529 (2007).

Meanwhile, back in New York the political scene and the blogosphere are bubbling over the perceived affront to the memory of the 9/11 victims, or, if you are on the other side of this issue, to the sensibilities of the Muslim faith. But the problem is that decisions to condemn are a part of the political process, and in the Empire State, after the recent Court of Appeals decision in Goldstein v. N.Y. State Urban Dev. Corp., 921 N.E.2d 164 (N.Y. 2009), it is the condemnor, not the courts, who gets to say what is public use. So a taking for a public memorial to the 9/11 victims should be a piece of cake. But then again, New York is the capital of political correctness, so who knows what those folks will actually do?

Follow-up. Yahoo! News reports that the New York Landmarks Preservation Commission has approved the demolition of the 152-year-old building that now sits on the site chosen for this mosque.

Second Follow up. Check out two op-eds in today’s Wall Street Journal, William McGurn, WTC Mosque, Meet the Auschwitz Nuns, at p. A15, and Dan Senor, An Open Letter on the Ground Zero Mosque, at p. A17. Whereas we have deal in our post with the legalities of the matter, particularly with the prospects of taking the mosque site by eminent domain, both Mr. McGurn and Mr. Senor, address the non-legal aspects of this controversy. Mr. McGurn elaborates on the views of Pope John Paul II who, when faced with a similar controversy precipitated by Carmelite nuns who set out to build a convent next to the site of the Auschwitz extermination camp, concludes that the Pope was right in requiring that the convent be built elsewhere. Mr. Senor takes a similar position and counsels that, as a matter of civic harmony, the mosque be built elsewhere.

Third follow-up. By far the best commentary on this wretched problem can be found in Dorothy Rabinowitz’s op-ed in today’s (Aug. 4, 2010) Wall Street Journal: Liberal Piety and the Memory of 9/11.